CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 juin 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s7940ED5C { font-family:Arial; font-style:italic; text-decoration:underline } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s21F08A35 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCA92750 { margin-top:12pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC769D9E0 { margin-top:42pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s6B505E72 { margin:0pt; padding-left:0pt } .s6E1266F8 { margin-left:29pt; text-align:justify; padding-left:25pt; font-family:Arial } .sB20B16E1 { margin-top:0pt; margin-left:18pt; margin-bottom:0pt; text-align:justify } .s8E296074 { margin-left:31.67pt; text-align:justify; padding-left:22.33pt; font-family:Arial } .s6FE8B704 { margin-left:34.33pt; text-align:justify; padding-left:19.67pt; font-family:Arial } FOURTH SECTION Application no. 25107/11 T.H.S. against the United Kingdom lodged on 21 April 2011 STATEMENT OF FACTS   The applicant, Mr T.H.S, is a Sri Lankan national, who was born in 1979 and lives in Ilford. He is represented before the Court by Ms Vasuki Muruhathas of Vasuki Solicitors, a lawyer practising in London. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Events in Sri Lanka The applicant, of Tamil ethnicity, ran an electronics shop in Trinocomalee in Sri Lanka. On 1 May 2006, a bomb exploded on the street near his shop whilst he was working inside. The applicant was arrested by the Sri Lankan army on suspicion of being involved in the explosion because the bomb had been detonated remotely and the applicant’s electronics skills made him a suspect. The applicant was detained by the Sri Lankan authorities for six weeks before being released without charge. Throughout his detention, the applicant claims that he was interrogated about his links to the Liberation Tigers of Tamil Eelam (“the LTTE” or “Tamil Tigers”) and ill-treated and tortured by Sri Lankan soldiers. He claims that he was punched, kicked and beaten with a rifle and sticks; cut with a pen knife; suspended by his thumbs; deprived of food; suffocated by a plastic bag filled with petrol fumes; and had cigarettes stubbed out on him. The Sri Lankan soldiers also forced a rubber pipe into the applicant’s anus and made threats to insert barbed wire into the pipe to cut the applicant internally. After his release from detention, the applicant claims that he was targeted by the Karuna group, a paramilitary group which broke away from the LTTE in 2004 and which supported the Sri Lankan security forces by taking action against people with LTTE connections. The applicant moved to Batticoloa where he did some work for a group of people who he later discovered were LTTE members. The applicant felt threatened by the Sri Lankan authorities, the Karuna group and the LTTE and left Sri Lanka with the assistance of an agent on his own passport. He came to the United Kingdom via Dubai and Mauritius. 2.     Arrival in the United Kingdom and original asylum proceedings The applicant arrived in the United Kingdom on 30 November 2006 and claimed asylum on the same day. On 18 January 2007, he was convicted of unknown immigration offences and sentenced to 3 months’ imprisonment which was suspended for 12 months. On 11 April 2007, the Secretary of State refused his asylum application. On 23 May 2007, the Asylum and Immigration Tribunal (“AIT”) dismissed his appeal as incredible due to the inconsistencies in his various accounts and the lack of any medical evidence regarding the injuries that he claimed that he had sustained whilst detained by the Sri Lankan authorities. On 3   July 2007, a Senior Immigration Judge refused his application for reconsideration. 3.     Further representations and proceedings in 2010 In April 2010, the applicant submitted further representations to the Home Office on the basis of a medical report dated 15 January 2008. That medical report had concluded that the applicant’s account of his scarring (predominately on his back and legs, although he also had several small scars on his hands and arms and lesions on his anus) was consistent with what he claimed had happened to him in Sri Lanka. In particular, the medical report concluded that the cigarette burn scars and tramline scars on his back made it difficult to consider any innocent explanation for his injuries because they could not have been self-inflicted. Furthermore, the applicant’s overall pattern of scarring was considered to be highly compatible with the history of ill-treatment that he had given. The applicant was also assessed as suffering from post-traumatic stress disorder. On 17 September 2010, the Secretary of State refused those representations and did not accept that they overturned the AIT’s earlier findings of May 2007. Nevertheless, the applicant was granted a further in-country right of appeal before the First-tier Tribunal (Asylum and Immigration Chamber) (“the Tribunal”). On 19 November 2010, the Tribunal dismissed the applicant’s appeal. Unlike the Secretary of State, the Immigration Judge (“the IJ”) accepted the findings of the medical report, noting that it was thoughtful and detailed and that the doctor had extensive experience in the medical care of refugees. The IJ thus accepted that the applicant had a considerable number of scars, some of which were highly compatible with his claimed experiences in Sri Lanka and found that it was difficult to see how such scars could have been caused, unless they had been caused in the course of ill-treatment of the applicant by the Sri Lankan army in detention. The IJ further accepted that the applicant’s account of ill-treatment was consistent with the background evidence that the Sri Lankan authorities had, at that time, ill-treated and tortured Tamils whom they considered to be involved with the LTTE. The IJ was therefore satisfied that the applicant had been ill-treated in the course of a period of detention by the Sri Lankan army in 2006 which had probably been related to the investigation of a bomb blast near his shop. However, the IJ noted that the applicant had later been released by the Sri Lankan authorities without charge and had not been asked to attend court or report to the authorities. As a result, the IJ concluded that the Sri Lankan authorities had had no further adverse interest in the applicant after his detention. Such a conclusion was found to be consistent with the fact that the applicant had been able to leave Sri Lanka later in 2006 on his own passport, albeit with the help of an agent, without being picked up by the Sri Lankan authorities. Whilst accepting that past ill-treatment could be a guide to future risk, the IJ did not accept that the applicant would be at risk upon return to Sri Lanka given, inter alia, the significant change in the country situation in Sri Lanka since 2006; the LTTE defeat in 2009; and the fact that he had been released without charge in 2006 when he had been of no further interest to the Sri Lankan authorities. The IJ further considered the risk factors set out in the country guidance case of TK (Tamils, LP updated) CG [2009] UKAIT 00049 (which reconsidered the earlier case of LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (see domestic law and practice below). The IJ found that the applicant would not be at risk upon return as a returning young Tamil male who had been detained by the Sri Lankan authorities and ill-treated in 2006. His previous record and “extensive scarring” were relevant risk factors but, on balance, the fact that he had been released without charge by the army in 2006 and had been able to leave Sri Lanka on his own passport was found to be more significant because the authorities would not have released him unless they had not wanted him anymore. The IJ therefore considered that the applicant’s removal to Sri Lanka would not breach Article 3 of the Convention. It is unclear whether or not the applicant applied for permission to appeal to the Upper Tribunal. 4.     Further representations and domestic proceedings in 2011 In mid-March 2011, the applicant was detained by the United Kingdom Border Agency (“the UKBA”) to effect his removal to Sri Lanka. On 17 and 23 March 2011, the applicant submitted further representations to the Home Office including an update in the general human rights situation in Sri Lanka, a Sri Lankan arrest warrant dated 12   January 2011 supported by a letter from a Sri Lankan lawyer and a letter from the applicant’s mother in Sri Lanka. In April 2011, the applicant was interviewed by Sri Lankan High Commission officials. He claims that they asked him questions about his asylum claim and that, from their questions to him, it was clear that they were aware of his past suspected LTTE membership and his arrest and detention in Sri Lanka. He claims that they accused him of having been involved in a bomb blast in 2006. On 19 May 2011, the Secretary of State refused the applicant’s representations and did not accept that they amounted to a fresh asylum claim. The Secretary of State relied substantially upon the findings of the IJ of November 2010 that the applicant was of no adverse interest to the Sri Lankan authorities and would not be at risk upon return. Additionally, noting that the applicant had failed to submit the arrest warrant earlier despite the fact that he claimed it related to his arrest and detention in 2006, the Secretary of State considered that it had been presented solely in an attempt to frustrate his removal. The Secretary of State also considered that the arrest warrant was not genuine given, inter alia, that the arrest warrant failed to provide information of the alleged details for which the applicant was said to be wanted by the authorities; that the objective information demonstrated that it was very difficult for accused persons in Sri Lanka to obtain copies of an arrest warrant; the ease with which such documents could be fabricated and the timing of the production of the arrest warrant (after he had been detained to effect his removal and four months after his appeal had been dismissed); and the fact that there was nothing in the applicant’s past to suggest that he would be wanted by the authorities. The Secretary of State further did not accept that the applicant’s mother’s letter or the additional country evidence relating to Sri Lanka would have any impact upon the risk to the applicant in Sri Lanka. The Secretary of State accepted that the applicant was a Tamil who had been suspected in 2006 of some LTTE involvement after a bomb had exploded near his shop. Nevertheless, considering all of the risk factors set out in TK and LP (see above), it was not accepted that he would be at real risk of Article 3 treatment upon return to Sri Lanka. 5.     The applicant’s attempted removal from the United Kingdom and allegations regarding the disclosure of his asylum claim to the Sri Lankan High Commission On 6 June 2011, the applicant was served with removal directions to Sri Lanka set to take place on a charter flight on 16 June 2011. On 15 June 2011, the applicant applied for judicial review at the High Court of the Secretary of State’s refusal of his fresh claim and the decision to set removal directions to Sri Lanka. He also applied for an urgent stay upon the removal directions. His claim was based on a number of grounds including, inter alia , a claim that the Secretary of State had failed to adequately consider the arrest warrant against him, the letter from a Sri Lankan lawyer and the applicant’s mother’s letter; the UKBA’s alleged practice of the transmission of personal data and details regarding failed asylum seekers to the Sri Lankan High Commission; and, in the light of the same, the added risk to the applicant given that he would be returning to Sri Lanka as an individual with an accepted history of torture, whose asylum claim was known to the Sri Lankan authorities, and whose date of return on a charter flight would also be known to the Sri Lankan authorities. On 16 June 2011, the applicant’s representatives submitted an application under Rule 39 of the Rules of Court to stop his removal to Sri Lanka. On 16 June 2011, the Acting President applied Rule 39 to stop the applicant’s removal to Sri Lanka that evening on a charter flight. On the same day, the Judge appointed as Rapporteur under Rule 49 § 2 of the Rules of Court decided that further information was required and asked the Government of the United Kingdom to respond to various factual questions in accordance with the provisions of Rule 49 § 3 of the Rules of Court. The Government were asked to confirm whether or not the Sri Lankan authorities had been informed that the applicant had made an asylum application in the United Kingdom; and whether or not any documents or details pertaining to the applicant’s asylum application had been provided to the Sri Lankan authorities. In a letter dated 1 July 2011, the Agent of the Government of the United Kingdom responded to those questions and informed the Court, inter alia, that a document had been inadvertently passed to the Sri Lankan High Commission in London which would have alerted the Sri Lankan authorities to the fact that the applicant had previously claimed asylum in the United Kingdom. However, they stated that the document had not contained any details of the nature of the applicant’s asylum claim and had only provided the date of the asylum claim and the date that the applicant had exhausted his appeal rights following that unsuccessful asylum claim. The Government asserted that the fact that the Sri Lankan authorities would be aware that the applicant had made an unsuccessful asylum claim in the United Kingdom would not, in and of itself, put him at risk upon return to Sri Lanka. Whilst the Government accepted that the disclosure of information had not been in line with UKBA’s usual process, they argued that the applicant’s case had been fully individually examined on an individual basis with reference to all potential risk factors and he had been found not to be in need of international protection. The Government therefore requested that the Court lift the interim measure under Rule 39 of the Rules of Court. On 1 August 2011, the applicant’s representatives responded to the Government’s letter and informed the Court that the applicant’s application for judicial review remained pending before the High Court. On 26 August 2011, the Acting President decided to refuse the Government’s request to lift the interim measure under Rule 39 of the Rules of Court. He further adjourned the application pending the conclusion of the High Court proceedings. On 2 September 2011, the High Court refused the applicant’s application for permission to apply for judicial review. The Secretary of State’s decision of 19 May 2011 was considered to be comprehensive and well-reasoned. The applicant renewed his application for judicial review and pursued his claim that the disclosure of his asylum claim to the Sri Lankan authorities had heightened the risk to him of ill-treatment on return to Sri Lanka. On 15 May 2012, the High Court refused his renewed application for permission to apply for judicial review further to an oral hearing. The High Court noted that the Secretary of State had accepted that the disclosure to the Sri Lankan High Commission of a form, intended to be an internal checklist of data relating to the applicant, was in contravention of section   13(3) of the Immigration and Asylum Act 1999 (see domestic law and practice below) because it included reference to the fact that the applicant had claimed asylum in the United Kingdom and provided the date of the asylum claim and the date that his final appeal had been dismissed. However, the High Court did not accept that the disclosure had been deliberate, or that any details of the applicant’s asylum interview or any documents linking him or his family to the LTTE had been disclosed. The High Court considered that the document which had been disclosed would tell the Sri Lankan authorities very little. The High Court rejected the applicant’s argument that the unlawful disclosure would automatically invalidate any later decision to set removal directions, if the disclosure had been inadvertent and would not pose any additional risk to an immigrant with no valid asylum claim. The High Court accepted that there was a discretionary power to strike down any removal directions issued in reliance on an emergency travel document which had been obtained by deliberate and cynical disclosure in breach of section 13(3) of the Immigration and Asylum Act 1999. However, it did not accept that there was any evidential basis for concluding that there had been a deliberate disclosure in the applicant’s case which required protective measures regardless of the actual risk to him on return. The High Court then rejected the applicant’s claim that the disclosure, taken together with all other matters would change his risk profile on return to Sri Lanka. First, it was acknowledged that the existence of an arrest warrant would potentially be very significant because it might show that the Sri Lankan authorities had a continuing adverse interest in the applicant contrary to the findings of the Tribunal. In that regard, the High Court noted that the Secretary of State had accepted (presumably during the course of the judicial review proceedings) that the arrest warrant was a genuine document, having been validated by a lawyer in Sri Lanka. Nevertheless, the High Court considered that the arrest warrant was a very strange document. It appeared to relate to proceedings started in 2006 when the applicant had been detained and then released. Although the particulars of the offence in the arrest warrant and the lawyer’s letter suggested that the warrant related to the fact that the applicant had absconded from detention, there had never been any earlier suggestion that the applicant had absconded or had failed to appear before a court in Sri Lanka. Furthermore, there was no evidence to suggest that the warrant was a live document or that there had ever been any attempt to execute the document in Sri Lanka. In that context, the date of the arrest warrant, January 2011, just weeks after the applicant’s asylum appeal had been dismissed was considered to appear fortuitous. Second, the High Court did not accept that the interview of the applicant by the Sri Lankan High Commission officials in April 2011 indicated a risk to him. They had not seemed to be aware of the existence of an arrest warrant against him (even though they must have made inquiries about him because they had asked him about his involvement in the bomb blast near his shop) and they had failed to raise any details of any alleged absconding from detention or failure to appear before a Sri Lankan court. Indeed, the officials had appeared to reassure the applicant that they had rehabilitated LTTE members and that all the problems in Sri Lanka had been solved. Having regard to all of the above, and even bearing in mind the potential significance of the arrest warrant and the presumption which lay behind the prohibition in section 13 of the Immigration and Asylum Act 1999 that mere disclosure of the fact that a person is a failed asylum seeker may expose him to an increased risk, the High Court found that there was no change to the risk to the applicant if returned to Sri Lanka. B.     Relevant domestic law 1.     Asylum and human rights claims Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention. Appeals in asylum, immigration and nationality matters were until 14   February 2010 heard by the AIT Section 103A of the Nationality, Immigration and Asylum Act 2002 provided that a party to an appeal could apply to the High Court, on the grounds that the AIT had made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal. The High Court could make such an order if it thought that the AIT may have made an error of law. All applications for reconsideration went through a “filter procedure”, so that an application for reconsideration was first made to an authorised immigration judge of the AIT. If the immigration judge refused to make an order for reconsideration, the applicant was able to renew the application to the High Court, which would consider the application afresh. Since 15 February 2010, appeals in asylum, immigration and nationality matters have been heard by the First-tier Tribunal (Immigration and Asylum Chamber). Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. 2.     Country guidance determinations in respect of Tamils returning to Sri Lanka The AIT’s determination in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 was considered by this Court in NA. v. the United Kingdom , no. 25904/07, 17 July 2008. The head note to the determination provided: “(1) Tamils are not per se at risk of serious harm from the Sri Lankan authorities in Colombo. A number of factors may increase the risk, including but not limited to: a previous record as a suspected or actual LTTE member; a previous criminal record and/or outstanding arrest warrant; bail jumping and/or escaping from custody; having signed a confession or similar document; having been asked by the security forces to become an informer; the presence of scarring; return from London or other centre of LTTE fundraising; illegal departure from Sri Lanka; lack of an ID card or other documentation; having made an asylum claim abroad; having relatives in the LTTE. In every case, those factors and the weight to be ascribed to them, individually and cumulatively, must be considered in the light of the facts of each case but they are not intended to be a check list. (2) If a person is actively wanted by the police and/or named on a Watched or Wanted list held at Colombo airport, they may be at risk of detention at the airport. (3) Otherwise, the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment. (4) Tamils in Colombo are at increased risk of being stopped at checkpoints, in a cordon and search operation, or of being the subject of a raid on a Lodge where they are staying. In general, the risk again is no more than harassment and should not cause any lasting difficulty, but Tamils who have recently returned to Sri Lanka and have not yet renewed their Sri Lankan identity documents will be subject to more investigation and the factors listed above may then come into play. (5) Returning Tamils should be able to establish the fact of their recent return during the short period necessary for new identity documents to be procured. (6) A person who cannot establish that he is at real risk of persecution in his home area is not a refugee; but his appeal may succeed under article 3 of the ECHR, or he may be entitled to humanitarian protection if he can establish he would be at risk in the part of the country to which he will be returned ...” LP was reconsidered by the AIT in the light of NA. in TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049. The AIT’s conclusions were summarised in the head note to the determination which, where relevant provides: “a) The risk categories identified in LP (LTTE area – Tamils - Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 and approved by the European Court of Human Rights (ECtHR) in NA v UK , App.no. 25904/07, remain valid. b) Events since the military defeat of the LTTE in May 2009 have not aggravated the likely approach of the Sri Lankan authorities to returned failed asylum seekers who are Tamils; if anything the level of interest in them has decreased. The principal focus of the authorities continues to be, not Tamils from the north (or east) as such, but persons considered to be either LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms. c) The records the Sri Lanka authorities keep on persons with some history of arrest and detention have become increasingly sophisticated; their greater accuracy is likely to reduce substantially the risk that a person of no real interest to the authorities would be arrested or detained.” 3.     Fresh asylum and human rights claims Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides as follows: “When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.” As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v.   Secretary of State for the Home Department [2006] EWCA Civ 1495 (paragraphs 10-11) has held: “Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.” Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Home Office, will nonetheless generate a fresh right of appeal to be considered on the merits. 4.     Confidentiality of asylum claims Section 13 of the Immigration and Asylum Act 1999 provides as follows: “13 Proof of identity of persons to be removed or deported. (1) This section applies if a person— (a) is to be removed from the United Kingdom to a country of which he is a national or citizen; but (b) does not have a valid passport or other document establishing his identity and nationality or citizenship and permitting him to travel. (2) If the country to which the person is to be removed indicates that he will not be admitted to it unless identification data relating to him are provided by the Secretary of State, he may provide them with such data. (3) In providing identification data, the Secretary of State must not disclose whether the person concerned has made a claim for asylum.” 5.     Enforced returns to Sri Lanka on charter flights UKBA have conducted five charter flights to Sri Lanka since June 2011 which have taken place on 16 June 2011, 28 September 2011, 15 December 2011, 28 February 2012 and 31 May 2012. Each flight has returned approximately fifty Sri Lankan nationals (including failed asylum seekers) to Colombo airport. On 27 February 2012 the Upper Tribunal (Immigration and Asylum Chamber) heard an application for judicial review of the Secretary of State’s decision to refuse to consider the fresh representations of a Sri Lankan Tamil as amounting to a fresh asylum claim and to set directions for his removal to Sri Lanka ( R (on the application of X) v Secretary of State for the Home Department , unreported). The main issue in the application was whether there was an elevated risk of ill-treatment to Tamils returned on charter flights. Having reviewed the evidence before it, including reports by Amnesty International, Freedom from Torture and Human Rights Watch and a letter from a returnee, RS, who claimed to have been ill-treated, the Upper Tribunal concluded that there was not. It reasoned: “44. Whilst the materials from the [United Nations Committee against Torture], Amnesty International, Human Rights Watch and others indicate that there are significant concerns currently about the use by the Sri Lankan authorities of torture and their ill treatment of those detained, especially those suspected of LTTE involvement, this is evidence that the Defendant [the Secretary of State] accepts and has taken into account in consideration of the Claimant’s fresh claim. Although this evidence paints a worrying picture as to ongoing human rights abuses in Sri Lanka, it remains that the evidence before the Defendant also includes materials indicating that there has been a very considerable reduction in the numbers of internally displaced persons and that in relation to treatment of failed asylum seekers the view of the ECtHR expressed less than a year ago in E.G. v UK [no. 41178/08, 31 May 2011], was that in the post-conflict climate there was less of a basis for the Sri Lankan authorities viewing failed asylum seekers adversely. We remind ourselves that, like the country guidance given in TK (which the ECtHR endorsed), the Court’s own assessment in E.G. was based on a mass of evidence including many detailed country reports and similar documentation. BHC [British High Commission] monitoring 45. We have noted evidence that UK charter flight returns of Sri Lankans involve a degree of monitoring. Some of the sources relied on by the Claimant dispute that simply taking a person’s details and providing them with a phone number does amount in any sense to effective monitoring, especially as (it is said) such persons may well fear that to contact the BHC might incur the wrath of the Sri Lanka authorities. However, the BHC assistance would appear to amount to significantly more than that. The BHC letter of 18 March 2011 explains that it ‘provides its contact details to returnees and they are encouraged to contact the Migration team if they encounter difficulties including any instances of harassments or assaults. This is not just limited to the entry procedures at the Airport, but also for post- arrival assistance.’ The same letter also indicates that BHC staff has taken the opportunity to undertake some kind of survey of responses made to them by charter flight returnees. It states that: ‘Further, 25% of the UK enforced returnees stated that the Border Control process for entry along with the Criminal Investigation Service (CID) procedure is cumbersome and lengthy. But there were no allegations of harassment.’ And the letters produced by the Defendant relating to the UKBA charter flight returns of 28/29   September and 15/16 December 2011 demonstrate that not only does a BHC representative speak with returnees and explain to them the procedures and offer to assist them in contacting friends or relatives prior to the Sri Lankan authorities processing them, but that representative also accompanies them after they have passed through Sri Lankan immigration and security controls. The BHC representative also gives them a business card and advises them to contact the BHC if they have any questions or concerns. By this time the returnees have also been spoken to individually by representatives of the International Organisation for Migration (IOM) who take their contact details and then hand them a travel grant in Sri Lankan rupees equivalent to £50. We do not see why if any returnee had any concerns they would choose not to raise them out of fear of reprisals by Sri Lankan officials. 46. It is also significant in our view that there is no evidence from any source before us of failed asylum seekers returned during 2011 having sought to contact one of the many human rights organisations in Sri Lanka in whom they might be expected to repose more confidence that their concerns would be kept confidential. The reports to the November UNCAT meeting are replete with references to various NGO bodies in Sri Lanka who have assembled dossiers of abuses by the Sri Lankan authorities. 47. Another important factor in our judgment is that in 2011 we know that over 100 Sri Lanka Tamils who are failed asylum seekers have been returned on charter flights. Yet there has not been a single allegation made in respect of their treatment since either to the BHC or UKBA. In respect of these charter flights there has been a considerable amount of legal assistance provided to them prior to their departure. We cannot think that when they left the UK their advisers in the UK would have neglected to advise them to contact lawyers here (or ensure relatives or friends did) if anything untoward was to happen to them. As regard enforced returns in 2011 outside the context of charter flights, once again we have not been shown any evidence of such allegations save in relation to the return last Tuesday of RS which we have already considered. 48. We are not aware of the ECtHR having made any Rule 39 indication in respect of persons on the 28 February 2011 charter flight. 49. Having regard to the details of the FFT, Amnesty International and HRW cases of concern, we are bound to say that the quality of the claims made about them, as presently presented, leaves much to be desired. We take into account that each of these bodies is a reputable organisation and that that each might wish to pursue perfectly legitimate policy concerns with the UK and other governments. But we can only deal with what is in front of us. Even bearing in mind that the test on an application of this kind is a modest one, what is in front of us does not pass muster. Whilst we do not question the motives of those who have sought to give them publicity, they do not exhibit features which might create a realistic prospect of success in the context of an appeal before a hypothetical tribunal judge. They certainly pose a number of questions, as any set of allegations must inevitably do, but they raise even more unanswered questions about their own efficacy. In our judgment the new materials relied on in this case do not arguably add anything of substance to the Claimant’s case. They do not show that the guidance given by the ECtHR in E.G. should be different or that the Defendant should have considered that they did.” COMPLAINTS The applicant complains under Article 2 and 3 of the Convention that his proposed expulsion to Sri Lanka will endanger his life and expose him to a real risk of torture. In particular, he claims that the United Kingdom Border Agency’s disclosure of his asylum claim to the Sri Lankan High Commission in London will heighten the risk to him of ill-treatment by the Sri Lankan authorities on return. QUESTION TO THE PARTIES Would the applicant’s removal to Sri Lanka violate Article 2 and/or Article 3 of the Convention?   The parties are requested to comment on the relevance, if any, on the assessment of the risk to the applicant on return to Sri Lanka of:   the United Kingdom Border Agency’s disclosure of the applicant’s asylum claim to the Sri Lankan High Commission in London;   the arrest warrant dated January 2011; and   the applicant’s proposed removal to Sri Lanka on a charter flight.